JUDGMENT By Court The above Appeals have been preferred against the common Judgment and Order of conviction and sentence dated 22.03.2005 passed by Sri Gautam Mahapatra, Additional Sessions Judge, F.T.C. No. 3, Palamau at Daltonganj in Sessions Trial No. 24 of 2003 corresponding to Chhatarpur P.S. Case No. 38/2001 [G.R. No. 563/2001] whereby and where under the appellants namely Ram Prasad Yadav and Aruni Yadav [In CRIMINAL APPEAL (DB) NO. 478 OF 2005] have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs.1,000/-each, and in default of payment of fine, further to undergo six months imprisonment whereas, the respondents Kaila Yadav, Balkesh Yadav, Awdhesh Yadav and Arbind Yadav [In ACQUITTAL APPEAL NO. 27 OF 2005] against whom Acquittal Appeal has been referred, have been acquitted. 2. The prosecution case in short is that Fardbayan of Ram Kumar Prasad was recorded on 02.05.2001 at 7:30 hrs. at village Namudag within Police Station Chhatarpur in which he has stated that on 02.05.2001, in the morning at 5:00 a.m. his father left home on his bicycle for going Chhatarpur after instructing him to come behind and accordingly, the informant followed his father. It is alleged that Rakesh Yadav was restrained by all the accused persons who are appellants and respondents respectively in the instant appeals; Aruni Yadav, who was armed with Tangi, gave a blow on the head of Rakesh Yadav. In the result, he fell down whereafter, Ram Prasad Yadav hurled repeated Tangi blows on the neck and other parts of the body of Rakesh Yadav. The remaining accused who are respondents in the instant Acquittal Appeal, were instigating the former accused to kill Rakesh Yadav. It is disclosed that Rakesh Yadav, after sustaining injuries, died at the spot and the informant, who happens to be the son of the deceased, raising alarm, ran towards the house. He disclosed the incident to the villagers and inmates and then returned back to the place of occurrence and then found his father dead. 3. On the basis of Fardbayan, Chhatarpur P.S. Case No. 38 of 2001 under Section 302/34 of the Indian Penal Code against the accused persons named in the F.I.R., was registered and the investigation commenced. He disclosed the incident to the villagers and inmates and then returned back to the place of occurrence and then found his father dead. 3. On the basis of Fardbayan, Chhatarpur P.S. Case No. 38 of 2001 under Section 302/34 of the Indian Penal Code against the accused persons named in the F.I.R., was registered and the investigation commenced. After completing the investigation, chargesheet was submitted against all the six accused and they were put on trial. 4. The prosecution, in order to substantiate the charge, examined altogether 14 witnesses whereas, the convicted appellants have examined Bablu Yadav (D.W.-1) in his defence. Arjun Kumar (P.W.-1) happens to be the hearsay witness and he has supported this fact that he heard about murder of Rakesh Yadav and he had gone to see the dead body. He did not support further case of the prosecution and, therefore, declared hostile. In his cross examination, he says that daughter-in-law of the deceased told him to inform Ram Kumar Prasad (Informant) and, thereafter, he went to village – Khada on his scooter and met the informant near the village. 5. Khelawan Yadav (P.W.-2), Sukhdev Yadav (P.W.-3), Mithilesh Yadav (P.W.-4) are also hearsay witnesses and they had reached to the place after knowing about the incident and they had witnessed seizure of bicycle, Gamcha and blood stained soil made from the place of occurrence. Jitendra Yadav (P.W.-5), Pramod Yadav (P.W.-6) and Ram Kumar Yadav (P.W.-10 – Informant) are the sons of deceased. Jitendra Yadav and Pramod Yadav are the witnesses to whom Ram Kumar Yadav informed about the incident and also disclosed the names of assailants and, thereafter, P.Ws. 5 and 6 reached to the place of occurrence and further assisted in the investigation. Umesh Chandra Yadav (P.W.-7), Laldev Yadav (P.W.-8), Ramdeo Bhagat (P.W.-12) had gone to the place of occurrence after knowing the murder of Rakesh Yadav and P.W.-7 is also a witness to the inquest. These witnesses have disclosed in their cross examination that Ram Kumar Yadav (Informant – P.W.-10), had gone to his sister's house situated at a different village and he was informed and brought by Arjun (P.W.-1) on a scooter. Vinay Kumar Sharma (P.W.-13) has been declared hostile and he has said nothing. Manoj Kumar (P.W.-14) is a Constable, who has proved the formal F.I.R.. 6. Dr. Vinay Kumar Sharma (P.W.-13) has been declared hostile and he has said nothing. Manoj Kumar (P.W.-14) is a Constable, who has proved the formal F.I.R.. 6. Dr. Kundan Prasad (P.W.-11) had conducted postmortem examination on the dead body of Rakesh Yadav on 02.05.2001 at 4:30 p.m. and found the following injuries:- (1) 4” x bone deep sharp incised wound on the right side of forehead. (2) 3” x bone deep incised wound on the right side of mandible. (3) 10” incised wound widely gapped and extending on the right side of neck from the cheek to the back of neck cutting cervical vertebra, food and wind pipe completely and vital blood vessels on right side leaving only a small portion of the neck on the left side. The injuries were caused by heavy sharp cutting weapon and cause of death was due to shock and haemorrhage as a result of above said injuries. In his cross examination, the Doctor has said that injury no. 3 is not only possible by Gandasa but the same may be possible by Tangi. To make it clear, he says that it is not a fact that injury no. 3 is not possible by Tangi. No food material was found in the stomach of the deceased. About six hours is taken in digesting the food. 7. Fulmati Devi (P.W.-9) is the wife of the deceased. She has deposed that his son told that Ram Prasad Yadav, Arun Yadav, Arbind Yadav, Awadhesh Yadav, Balkesh Yadav and Kail Yadav have killed his father by means of Tangi. Thereafter, she went to the place of occurrence situated near Namudag High School and found the dead body of her husband. In her cross examination, she admits that her husband, after having breakfast, had left home for Chhatarpur but he did not disclose the reason for going Chhatarpur. Her son left home at 6:00 a.m. at the instruction of his father but she did not know why his father had called him. At about 7:00 a.m., she was informed about the incident. Her attention was drawn towards the contradiction. 8. Ram Kumar Yadav (P.W.-10) has stated that on 02.05.2001, at 5:00 a.m., his deceased father left home and he followed him. At about 7:00 a.m., she was informed about the incident. Her attention was drawn towards the contradiction. 8. Ram Kumar Yadav (P.W.-10) has stated that on 02.05.2001, at 5:00 a.m., his deceased father left home and he followed him. When his father reached near Namudag High School, he was surrounded by the accused persons named in the First Information Report (now appellants and respondents respectively in the above appeals) who were in abmush. Ram Prasad and Aruni were armed with Tangi and they hurled Tangi blows on his father. The remaining accused were instigating to kill the deceased. This witness was requesting to leave his father but the accused persons did not concede. Due to assault, Rakesh Yadav (father of this witness), died at the spot. Thereafter, raising alarm, he returned home and informed the incident to his mother and other villagers. He has proved his signature appearing in the Fard Bayan. In his cross examination, he has admitted that the incident took place due to old land dispute which was prevailing between the two families since last ten years. He admits that he had witnessed the occurrence from a distance of 150 - 200 yards. Before his father reached to the place of occurrence, the accused persons were hiding themselves within bush. This witness was cross examined in detail with regard to the manner of occurrence and the weapon used. In para-6 of his deposition, he has described the size of axe about 2” and it was having a wooden handle of about “DO HAATH” [approx. 3 ft. long]. He himself admits that except him, nobody had witnessed the occurrence and the villagers had assembled after he informed them. He has stated that apprehending danger of the life of his father, he used to accompany him but he did not accompany when his father used to go to School. 9. The learned counsel appearing for the convicted appellants has argued that the informant who has projected himself as the eye witness, was not at all present at the scene of occurrence. P.W.-1 has clearly stated that after receiving instruction from the daughter-in-law of the deceased, he went on his Scooter to bring the informant who had gone to the village to his sister. P.W.-1 has clearly stated that after receiving instruction from the daughter-in-law of the deceased, he went on his Scooter to bring the informant who had gone to the village to his sister. It is not that P.W.-1, who has been declared hostile, has disclosed this fact rather P.Ws.-7, 8 and 12 have also corroborated that the informant was not present in the village at the time of incident and he was brought by Arjun (P.W.-1) on his Scooter. 10. Besides the evidence of these witnesses, conduct of the informant also disproves his presence at the spot. He admits that apprehending danger of the life of his father, he used to accompany him. If the evidence of the informant is taken to be true, he was not accompanying his father at the time of the incident. He says that his father had left home at 5:00 O'clock in the early morning on a bicycle and he left home after ten minutes. According to his version he had witnessed the occurrence from a distance of 150 – 200 Yards and he was on foot. It is beyond imagination how a person, who was moving on foot would follow a person moving on a bicycle. Even after seeing the accused persons at the spot, who were armed with Tangi, he did not caution his father. Not only that, he did not run to save the deceased in any manner and he stuck to the place situated at a distance of 200 yards with an intention to see the assault. This version of the informant could not be considered reliable and trustworthy. On this score alone, the presence of the informant at the place of occurrence at the relevant point of time could easily be disbelieved. The mother of the informant (P.W.-9) has gone to the extent of saying that the informant left home at about 6:00 a.m., which was after an hour the deceased left home. 11. The next point raised by the learned counsel is that P.W.-9 has stated that the deceased left home after having breakfast and the incident took place within two hours, but the Doctor who conducted the Postmortem examination on the dead body, did not find any food particles in the stomach and according to postmortem report, the stomach was empty. The Doctor though submits that injury no. The Doctor though submits that injury no. 3 was caused by Tangi, but this opinion cannot be accepted in view of the length of injury no. 3 as noted in the postmortem report. The informant has described the size of the axe as about 2”. Therefore, the weapon having 2” of edge, could not cause 10” long injury as described under injury no. 3 in the postmortem report. The repeated blow by a weapon of that size at the same place may give result to an injury of 10” but it would not be like injury no. 3 – 10” long incised wound widely gapped and extending on the right side of the neck from the chick to the back of neck and as deep as to cut its cervical vertebra, food and wind pipe completely. If repeated blows by a weapon having 2” of edge is given, the margin will be uneven and must be lacerated. The Investigating Officer has not been examined and, therefore, the place of occurrence has also not been proved and, therefore, the appellants have been wrongly held guilty and the impugned judgment is liable to be set aside. 12. Learned counsel for the State has opposed the arguments and supported the impugned Judgment. Learned counsel appearing for the State in Acquittal Appeal has submitted that learned Additional Sessions Judge has wrongly appreciated the evidence on record. The informant has clearly stated that all the accused who were in ambush, suddenly appeared. Ram Prasad and Aruni were armed with Tangi and they inflicted blows on the person of the deceased and the remaining accused who are respondents in Acquittal Appeal, were instigating and abetting the offence and, therefore, they are also liable to be convicted with the aid of Section 34 of the Indian Penal Code. 13. We have carefully considered the evidence on record. It is settled law that conviction can be passed on the testimony of solitary eye witness if it is fully truthful, reliable, trustworthy and inspiring confidence but in such cases, the evidence of solitary eye witness is required to be scrutinised with great care and caution which we did. The statement that the informant was brought by P.W.-1 on his Scooter after the incident from another village known as Khada, is not only deposed by P.W.-1 but also by P.Ws.-7, 8 and 12. The statement that the informant was brought by P.W.-1 on his Scooter after the incident from another village known as Khada, is not only deposed by P.W.-1 but also by P.Ws.-7, 8 and 12. For the argument sake, if we discard the version of P.W.-1 on the ground that he has been declared hostile, we did not find any reason to disbelieve P.Ws.-7, 8 and 12 when they say that P.W.-1 had gone to bring the informant from the village in which his sister was married. We find substance in the arguments advanced by the learned Advocate Shri M.P. Tiwari that conduct of informant is doubtful. Even assuming that the informant had left home in order to follow his father, his presence at the time of the incident could not be believed for the reason that the deceased left home on a bicycle, the informant followed him on foot after ten minutes of departure of the deceased. P.W.-9 says that she did not know why the deceased had called the informant; she further says that the informant left home at 6:00 O'clock whereas, the informant says that his father left home at 5:00 O'clock. If there was gap of about one hour between departure of father and son, as disclosed by P.W.-9, the presence of the informant at the place becomes doubtful. It is admitted version of the informant that he had witnessed the occurrence from a distance of 150 – 200 yards and he did not move towards his father to save him rather stuck to the place and witnessed the assault. Such conduct of the informant does not inspire confidence and the statements of such witness cannot be considered to be trustworthy. We also find force in the arguments that the medical evidence does not support the ocular evidence as disclosed by the informant and P.W.-9, the Doctor did not find any food particles, either digested, semi digested or undigested in the stomach rather he has clearly said that stomach was empty, though P.W.-9 says that the deceased left home after having breakfast. We also considered the arguments probable that the injury no. 3 is not possible by a weapon having 2” of edge. The description of injury no. 3 suggests that it might have been caused by heavy sharp cutting weapon having larger edge. 14. We also considered the arguments probable that the injury no. 3 is not possible by a weapon having 2” of edge. The description of injury no. 3 suggests that it might have been caused by heavy sharp cutting weapon having larger edge. 14. In view of the discussions made above, we feel inclined to give benefits of doubt to the appellants who have been convicted. In the result, the criminal appeal filed by the appellants namely Ram Prasad Yadav and Aruni Yadav i.e. CRIMINAL APPEAL (DB) NO. 478 OF 2005 stands allowed and Judgment of conviction and sentence passed by Sri Gautam Mahapatra, Additional Sessions Judge, F.T.C. No. 3, Palamau at Daltonganj in Sessions Trial No. 24 of 2003 corresponding to Chhatarpur P.S. Case No. 38/2001 [G.R. No. 563/2001] stands set aside. Consequently, the appellants namely Ram Prasad Yadav and Aruni Yadav [In CRIMINAL APPEAL (DB) NO. 478 OF 2005] are directed to be released forthwith if not wanted in any other case. For the reasons noticed above, the Acquittal Appeal No. 27 of 2005 filed by the State against the acquitted respondents Kaila Yadav, Balkesh Yadav, Awdhesh Yadav and Arbind Yadav stands dismissed.